A diary from someone who’s been watching the copyright wars for two decades
So here’s a sentence I never thought I’d write on Daily Kos: Clarence Thomas wrote a Supreme Court opinion this March that actually got something right. Stopped clock, broken acorn, whatever… credit where it’s due. In Cox Communications v. Sony Music Entertainment, the Court tossed out a billion-dollar verdict that would have turned every ISP in America into a copyright cop with a kill switch on your front door.
I want to talk about why this matters, why I, as a hacker, as a free-speech person, as someone who builds things on the open web think it’s the right call, and why the dissent’s concerns are also worth taking seriously even if I disagree with them.
What actually happened
The setup is almost cartoonishly simple. Sony and the other major labels hired a company called MarkMonitor to scrape the internet for copyright infringement. Over about two years, MarkMonitor sent Cox 163,148 notices saying “this IP address pirated this song.” Cox, like most ISPs, has a graduated-response system. Warnings, temporary suspensions, eventually termination. Sony’s argument was that Cox didn’t terminate enough people, and that by continuing to provide internet service to “known infringers,” Cox itself became a copyright infringer.
A jury bought it. One billion dollars in statutory damages. The Fourth Circuit affirmed. And then the Supreme Court, 7-2 (with Sotomayor and Jackson concurring in the judgment but not the reasoning), said: no, that’s not how this works.
The majority held that to be contributorily liable for someone else’s copyright infringement, you have to either (1) actively induce the infringement like the Grokster file-sharing companies that literally marketed themselves as piracy tools or (2) provide a service that has no real non-infringing use, like the lower court thought the Betamax was before SCOTUS corrected them in the ’80s. Cox does neither. Cox sells internet access. Internet access is used for, you know, the internet.
Why this matters if you’ve never pirated a single MP3
Here’s the thing the labels desperately don’t want you to think about: an ISP termination is the closest thing the modern world has to civil exile. It’s not a fine. It’s not a cease-and-desist. It’s the entire household losing its connection to telemedicine, to remote work, to school, to government services, to family across the country, to participation in society. And under the regime Sony was trying to build, that punishment would have been triggered by accusations not convictions, not court findings, just notices from a private company hired by another private company.
Think about who gets caught in that net. The grandmother whose grandson uses her Wi-Fi. The coffee shop with one IP shared by every customer. The college dorm. The apartment building. The household where one teenager downloaded a Taylor Swift album and now nobody can refill their insulin prescription online. Cox itself only terminated 32 subscribers during the claim period. And Sony’s complaint was that this number was too low. The implicit demand was mass disconnection on the basis of bot-generated allegations.
This is the same fight we had during SOPA and PIPA in 2012. It’s the same fight EFF has been having for twenty years. It’s the fight that sits underneath every “three strikes” law that France and the UK flirted with and eventually walked back. The copyright maximalists keep trying to enlist infrastructure providers as private enforcers because suing actual users one at a time is expensive and looks terrible in the press (remember when the RIAA sued a 12-year-old?). Drafting the ISPs is so much cleaner. You just lean on the chokepoint.
And once that chokepoint exists for copyright, it exists for everything else. That’s the part that should keep every progressive up at night. An ISP that can be sued into terminating “known infringers” today can be pressured into terminating “known extremists” tomorrow, and then “known election misinformation spreaders,” and then whatever the next moral panic is. The infrastructure of disconnection doesn’t care what justification gets fed into it. Build the machine and someone will use it on people you like.
The hacker ethic angle
I come at this from a specific place. I’ve been WaffleHacker online for a long time. I build things on the open web for a living and for fun. The internet I fell in love with. The one that made it possible for a kid with a modem to learn to code, to publish, to find community, to exist somewhere other than where they were born. That internet only works if access isn’t conditional on the approval of rights holders.
Copyright is real and creators deserve to get paid. I’m not a copyright abolitionist. But there’s a massive difference between “you can sue someone who infringes your work” and “you can force their landlord to evict them from the entire internet because a bot said so.” The first is enforcement. The second is collective punishment delivered through a private actor with no due process.
The Court got this right. ISPs aren’t pirate ships. They’re roads. You don’t sue the highway department because someone drove a getaway car on I-65.
Where Sotomayor has a point (and where I think she’s wrong)
I want to be fair to the concurrence, because Sotomayor and Jackson aren’t wrong about everything. Their worry is that the majority has effectively neutered the DMCA safe harbor. Congress passed Section 512 in 1998 on the assumption that ISPs could be secondarily liable, and built a deal: implement a reasonable repeat-infringer policy and you get immunity. If knowledge plus inaction never creates liability in the first place, the deal becomes one-sided. ISPs get the immunity for free and have no incentive to do anything.
That’s a real argument. I just think it proves too much. The DMCA bargain was never actually balanced. It was a gun to the industry’s head from the labels in 1998 and Congress made the best of a bad situation. The notice-and-takedown regime we got from it has been weaponized constantly: bogus DMCA claims used to silence critics, to suppress journalism, to shut down competitors, to harass marginalized creators. Anyone who’s spent ten minutes on YouTube knows the system is broken in the other direction. Tilting it slightly back toward users and infrastructure providers is a feature, not a bug.
And Sotomayor herself ends up agreeing Cox isn’t liable, she just gets there through aiding-and-abetting common law instead of the majority’s narrower path. Even she can’t make the facts of this case into a winner for Sony. The strongest case the labels could put together, with 163,000 notices and a friendly Fourth Circuit, still couldn’t clear the bar. That tells you something.
What happens next
The labels are going to keep pushing. They’ll go to Congress. They’ll try state laws. They’ll try international treaties. They’ll fund academic papers about the “value gap.” This fight isn’t over. It’s never over. But for right now, today, in 2026, your ISP cannot be sued into cutting off your household because some kid on your Wi-Fi grabbed a FLAC of an album that’s been out for fifteen years. That’s a win. Take it.
Stay free out there.
